Matter of Moore

Matter of Moore 2021 NY Slip Op 06690 Decided on December 1, 2021 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 1, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
VALERIE BRATHWAITE NELSON
ANGELA G. IANNACCI
LARA J. GENOVESI, JJ.
2017-03720

[*1]In the Matter of Frank Moore, Jr., deceased. Eileen S. Kyne, petitioner-respondent; Michele Moore, objectant-appellant; Frank Moore III, respondent-respondent. (File No. 754/90)

Michele Moore, Huntington, NY, objectant-appellant pro se.

Stephen P. Kyne, Huntington, NY, and McCarthy & Reynolds, P.C., Huntington, NY (Michael L. McCarthy of counsel), for petitioner-respondent, and Craco & Ellsworth, LLP, Huntington, NY (Andrew C. Ellsworth of counsel), for respondent-respondent (one brief filed).

In a probate proceeding in which the trustee, Eileen S. Kyne, petitioned to judicially settle her final account, the objectant, Michele Moore, appeals from stated portions of an order of the Surrogate's Court, Suffolk County (John M. Czygier, Jr., S.), dated January 31, 2017.

DECISION & ORDER

Motion by the respondent-respondent to dismiss the appeal on the ground that the right of direct appeal from the order terminated upon entry of a decree of the same court dated July 17, 2018. By decision and order on motion of this Court dated December 26, 2018, the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is

ORDERED that the motion is granted; and it is further,

ORDERED that the appeal is dismissed, with costs payable by the objectant-appellant personally.

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the decree in the proceeding (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are not brought up for review and have not been considered on the appeal from the decree (Matter of Moore, ___ AD3d ___ [Appellate Division Docket No. 2018-12706; decided herewith]), as the order does not "necessarily affect[ ]" the decree (CPLR 5501[a][1]; see Oakes v Patel, 20 NY3d 633, 643-644).

MASTRO, J.P., BRATHWAITE NELSON, IANNACCI and GENOVESI, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court